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Criminal Procedure

Criminal law

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Full-Text Articles in Law

Reforming Competence Restoration Statutes: An Outpatient Model, Susan A. Mcmahon Mar 2019

Reforming Competence Restoration Statutes: An Outpatient Model, Susan A. Mcmahon

Georgetown Law Faculty Publications and Other Works

Defendants who suffer from mental illness and are found incompetent to stand trial are often ordered committed to an inpatient mental health facility to restore their competence, even if outpatient care may be the better treatment option. Inpatient facilities are overcrowded and place the defendants on long waiting lists. Some defendants then spend weeks, months, or even years in their jail cell, waiting for a transfer to a hospital bed.

Outpatient competence restoration programs promise to relieve this pressure. But even if every state suddenly opened a robust outpatient competence restoration program, an obstacle looms: the statutes governing competence restoration ...


The Left's Law-And-Order Agenda, Aya Gruber Jan 2019

The Left's Law-And-Order Agenda, Aya Gruber

Articles

No abstract provided.


Federal Guilty Pleas: Inequities, Indigence And The Rule 11 Process, Julian A. Cook Jan 2019

Federal Guilty Pleas: Inequities, Indigence And The Rule 11 Process, Julian A. Cook

Scholarly Works

In 2017 and 2018, the Supreme Court issued two little-noticed decisions—Lee v. United States and Class v. United States. While neither case captured the attention of the national media nor generated meaningful academic commentary, both cases are well deserving of critical examination for reasons independent of the issues presented to the Court. They deserve review because of a consequential shared fact; a fact representative of a commonplace, yet largely overlooked, federal court practice that routinely disadvantages the indigent (and disproportionately minority populations), and compromises the integrity of arguably the most consequential component of the federal criminal justice process. In ...


Prosecuting In The Shadow Of The Jury, Anna Offit Jan 2019

Prosecuting In The Shadow Of The Jury, Anna Offit

Faculty Scholarship

This article offers an unprecedented empirical window into prosecutorial discretion drawing on long-term participatory research between 2013 and 2017. The central finding is that jurors play a vital role in federal prosecutors’ decision-making, professional identities, and formulations of justice. This is because even the remote possibility of lay scrutiny creates an opening for prosecutors to make common sense assessments of (1) the evidence in their cases, (2) the character of witnesses, defendants and victims, and (3) their own moral and professional character as public servants. By facilitating explicit consideration of the fairness of their cases from a public vantage point ...


Revisiting The Role Of Federal Prosecutors In Times Of Mass Imprisonment, Nora V. Demleitner Feb 2018

Revisiting The Role Of Federal Prosecutors In Times Of Mass Imprisonment, Nora V. Demleitner

Faculty Scholarship

None available.


The Subversions And Perversions Of Shadow Vigilantism, Paul H. Robinson, Sarah M. Robinson Jan 2018

The Subversions And Perversions Of Shadow Vigilantism, Paul H. Robinson, Sarah M. Robinson

Faculty Scholarship at Penn Law

This excerpt from the recently published Shadow Vigilantes book argues that, while vigilantism, even moral vigilantism, can be dangerous to a society, the real danger is not of hordes of citizens, frustrated by the system’s doctrines of disillusionment, rising up to take the law into their own hands. Frustration can spark a vigilante impulse, but such classic aggressive vigilantism is not the typical response. More common is the expression of disillusionment in less brazen ways by a more surreptitious undermining and distortion of the operation of the criminal justice system.

Shadow vigilantes, as they might be called, can affect ...


The Consensus Myth In Criminal Justice Reform, Benjamin Levin Jan 2018

The Consensus Myth In Criminal Justice Reform, Benjamin Levin

Articles

It has become popular to identify a “consensus” on criminal justice reform, but how deep is that consensus, actually? This Article argues that the purported consensus is much more limited than it initially appears. Despite shared reformist vocabulary, the consensus rests on distinct critiques that identify different flaws and justify distinct policy solutions. The underlying disagreements transcend traditional left/right political divides and speak to deeper disputes about the state and the role of criminal law in society.

The Article maps two prevailing, but fundamentally distinct, critiques of criminal law: (1) the quantitative approach (what I call the “over” frame ...


Rethinking The Boundaries Of "Criminal Justice", Benjamin Levin Jan 2018

Rethinking The Boundaries Of "Criminal Justice", Benjamin Levin

Articles

This review of The New Criminal Justice Thinking (Sharon Dolovich & Alexandra Natapoff, eds.) tracks the shifting and uncertain contours of “criminal justice” as an object of study and critique.

Specifically, I trace two themes in the book:

(1) the uncertain boundaries of the “criminal justice system” as a web of laws, actors, and institutions; and

(2) the uncertain boundaries of “criminal justice thinking” as a universe of interdisciplinary scholarship, policy discourse, and public engagement.

I argue that these two themes speak to critically important questions about the nature of criminal justice scholarship and reform efforts. Without a firm understanding of what constitutes the “criminal justice system,” it is difficult to agree on the proper targets of critique or to determine what legal, social, and political problems are properly the province of “criminal justice thinking.” And, deciding which voices to accept and privilege in these ...


Criminal Employment Law, Benjamin Levin Jan 2018

Criminal Employment Law, Benjamin Levin

Articles

This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with ...


The Scale Of Misdemeanor Justice, Megan T. Stevenson, Sandra G. Mayson Jan 2018

The Scale Of Misdemeanor Justice, Megan T. Stevenson, Sandra G. Mayson

Scholarly Works

This Article seeks to provide the most comprehensive national-level empirical analysis of misdemeanor criminal justice that is currently feasible given the state of data collection in the United States. First, we estimate that there are 13.2 million misdemeanor cases filed in the United States each year. Second, contrary to conventional wisdom, this number is not rising. Both the number of misdemeanor arrests and cases filed have declined markedly in recent years. In fact, national arrest rates for almost every misdemeanor offense category have been declining for at least two decades, and the misdemeanor arrest rate was lower in 2014 ...


The Death Penalty As Incapacitation, Marah S. Mcleod Jan 2018

The Death Penalty As Incapacitation, Marah S. Mcleod

Journal Articles

Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence. The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary. The view on the ground could not be more different. Hundreds of executions have been premised on the need to protect society from dangerous offenders. Two states require a finding of future dangerousness for any death sentence, and over a dozen others treat it as an aggravating factor that turns murder into a capital crime.

How can courts and commentators ...


Do The Ends Justify The Means? Policing And Rights Tradeoffs In New York City, Amanda Geller, Jeffrey Fagan, Tom R. Tyler Jan 2018

Do The Ends Justify The Means? Policing And Rights Tradeoffs In New York City, Amanda Geller, Jeffrey Fagan, Tom R. Tyler

Faculty Scholarship

Policing has become an integral component of urban life. New models of proactive policing create a double-edged sword for communities with strong police presence. While the new policing creates conditions that may deter and prevent crime, close surveillance and frequent intrusive police-citizen contacts have strained police-community relations. The burdens of the new policing often fall on communities with high proportions of African American and Latino residents, yet the returns to crime control are small and the risks of intrusive, impersonal, aggressive non-productive interactions are high. As part of the proffered tradeoff, citizens are often asked to view and accept these ...


Connecting The Disconnected: Communication Technologies For The Incarcerated, Neil Sobol Jan 2018

Connecting The Disconnected: Communication Technologies For The Incarcerated, Neil Sobol

Faculty Scholarship

Incarceration is a family problem—more than 2.7 million children in the United States have a parent in jail or prison. It adversely impacts family relationships, financial stability, and the mental health and well-being of family members. Empirical research shows that communications between inmates and their families improve family stability and successful reintegration while also reducing the inmate’s incidence of behavioral issues and recidivism rates. However, systemic barriers significantly impact the ability of inmates and their families to communicate. Both traditional and newly developed technological communication tools have inherent advantages and disadvantages. In addition, private contracting of communication ...


Brain Development, Social Context And Justice Policy, Elizabeth S. Scott, Natasha Duell, Laurence Steinberg Jan 2018

Brain Development, Social Context And Justice Policy, Elizabeth S. Scott, Natasha Duell, Laurence Steinberg

Faculty Scholarship

Justice policy reform in the past decade has been driven by research evidence indicating that brain development is ongoing through adolescence, and that neurological and psychological immaturity likely contributes in important ways to teenagers’ involvement in crime. But despite the power of this trend, skeptics point out that many (perhaps most) adolescents do not engage in serious criminal activity; on this basis, critics argue that normative biological and psychological factors associated with adolescence are unlikely to play the important role in juvenile offending that is posited by supporters of the reform trend. This Article explains that features associated with biological ...


Left Behind: How The Absence Of A Federal Vacatur Law Disadvantages Survivors Of Human Trafficking, Jessica Emerson, Alison Aminzadeh Oct 2017

Left Behind: How The Absence Of A Federal Vacatur Law Disadvantages Survivors Of Human Trafficking, Jessica Emerson, Alison Aminzadeh

All Faculty Scholarship

After a hamstring injury in October of 2004 forced her to surrender her athletic scholarship at St. John's University, Shamere McKenzie chose to spend her winter break working in order to save the money she needed to pay the remainder of her tuition. In January of 2005, Shamere met a man named Corey Davis, who expressed an interest in dating her. After getting to know him for several weeks, she eventually shared with him the challenges she was having earning the money she needed to continue her enrollment in college. Davis encouraged her to consider exotic dancing as a ...


Rationing Criminal Justice, Richard A. Bierschbach, Stephanos Bibas Jan 2017

Rationing Criminal Justice, Richard A. Bierschbach, Stephanos Bibas

Faculty Scholarship at Penn Law

Of the many diagnoses of American criminal justice’s ills, few focus on externalities. Yet American criminal justice systematically overpunishes in large part because few mechanisms exist to force consideration of the full social costs of criminal justice interventions. Actors often lack good information or incentives to minimize the harms they impose. Part of the problem is structural: criminal justice is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. Part is a matter of focus: doctrinally and pragmatically, actors overwhelmingly view each case as an isolated, short-term transaction to the exclusion of broader, long-term, and aggregate ...


“New Judgment” And The Federal Habeas Statutes, Thomas V. Burch Jan 2017

“New Judgment” And The Federal Habeas Statutes, Thomas V. Burch

Scholarly Works

Prisoners love to file habeas petitions. Maybe a little too much. That is why Congress drafted the federal habeas statutes to preclude prisoners from filing “second or successive” petitions attacking their judgments. This essay explains the shortcomings of how some courts have assessed that meaning, and it proposes a straightforward test for determining when a new judgment exists.


Decriminalizing Childhood, Andrea L. Dennis Jan 2017

Decriminalizing Childhood, Andrea L. Dennis

Scholarly Works

Even though the number of juveniles arrested, tried and detained has recently declined, there are still a large number of delinquency cases, children under supervision by state officials, and children living in state facilities for youth and adults. Additionally, any positive developments in juvenile justice have not been evenly experienced by all youth. Juveniles living in urban areas are more likely to have their cases formally processed in the juvenile justice system rather than informally resolved. Further, the reach of the justice system has a particularly disparate effect on minority youth who tend to live in heavily-policed urban areas.

The ...


The Downstream Consequences Of Misdemeanor Pretrial Detention, Paul Heaton, Sandra G. Mayson, Megan Stevenson Jan 2017

The Downstream Consequences Of Misdemeanor Pretrial Detention, Paul Heaton, Sandra G. Mayson, Megan Stevenson

Scholarly Works

In misdemeanor cases, pretrial detention poses a particular problem because it may induce innocent defendants to plead guilty in order to exit jail, potentially creating widespread error in case adjudication. While practitioners have long recognized this possibility, empirical evidence on the downstream impacts of pretrial detention on misdemeanor defendants and their cases remains limited. This Article uses detailed data on hundreds of thousands of misdemeanor cases resolved in Harris County, Texas—the thirdlargest county in the United States—to measure the effects of pretrial detention on case outcomes and future crime. We find that detained defendants are 25% more likely ...


Measuring The Creative Plea Bargain, Thea B. Johnson Jan 2017

Measuring The Creative Plea Bargain, Thea B. Johnson

Faculty Publications

A great deal of criminal law scholarship and practice turns on whether a defendant gets a good deal through plea bargaining. But what is a good deal? And how do defense attorneys secure such deals? Much scholarship measures plea bargains by one metric: how many years the defendant receives at sentencing. In the era of collateral consequences, however, this is no longer an adequate metric as it misses a world of bargaining that happens outside of the sentence. Through empirical research, this Article examines the measure of a good plea and the work that goes into negotiating such a plea ...


The Grand Jury: A Shield Of A Different Sort, R. Michael Cassidy, Julian A. Cook Jan 2017

The Grand Jury: A Shield Of A Different Sort, R. Michael Cassidy, Julian A. Cook

Scholarly Works

According to the Washington Post, 991 people were shot to death by police officers in the United States during calendar year 2015, and 957 people were fatally shot in 2016. A disproportionate percentage of the citizens killed in these police-civilian encounters were black. Events in Ferguson, Missouri; Chicago, Illinois; Charlotte, North Carolina; Baton Rouge, Louisiana; and Staten Island, New York - to name but a few affected cities - have now exposed deep distrust between communities of color and law enforcement. Greater transparency is necessary to begin to heal this culture of distrust and to inform the debate going forward about police ...


Hard Bargaining In Plea Bargaining: When Do Prosecutors Cross The Line?, Cynthia Alkon Jan 2017

Hard Bargaining In Plea Bargaining: When Do Prosecutors Cross The Line?, Cynthia Alkon

Faculty Scholarship

Well over 90 percent of all criminal cases in the United States are resolved by plea bargaining and not by trial. This means that how plea bargaining works impacts nearly every criminal defendant. However, there are few restrictions to protect defendants in the negotiating process. One serious problem is that prosecutors regularly use hard bargaining tactics such as exploding offers, threats to add enhancements, take-it-or-leave-it offers, and threats to seek the death penalty. These hard bargaining tactics contribute to the often highly coercive atmosphere of plea bargaining that can lead innocent defendants to plead guilty. Pressure to plead guilty can ...


How Being Right Can Risk Wrongs, Paul H. Robinson, Sarah M. Robinson Aug 2016

How Being Right Can Risk Wrongs, Paul H. Robinson, Sarah M. Robinson

Faculty Scholarship at Penn Law

This is a chapter from the new book The Vigilante Echo. Previous chapters have made clear that some vigilantism can be morally justified where the government has failed in its promise under the social contract to protect and to do justice. But this chapter explains how even moral vigilante action can be problematic for the larger society. Vigilantes may try to do the right thing but are likely to lack the training and professional neutrality of police. They may be successful, but only on pushing the crime problem to an adjacent neighborhood. Because their open lawbreaking may seem admirable to ...


Shadow Vigilante Officials Manipulate And Distort To Force Justice From An Apparently Reluctant System, Paul H. Robinson, Sarah M. Robinson Aug 2016

Shadow Vigilante Officials Manipulate And Distort To Force Justice From An Apparently Reluctant System, Paul H. Robinson, Sarah M. Robinson

Faculty Scholarship at Penn Law

The real danger of the vigilante impulse is not of hordes of citizens, frustrated by the system’s doctrines of disillusionment, rising up to take the law into their own hands. Frustration can spark a vigilante impulse but such classic aggressive vigilantism is not the typical response. More common is the expression of disillusionment in less brazen ways, by a more surreptitious undermining and distortion of the operation of the criminal justice system.

Shadow vigilantes, as they might be called, can affect the operation of the system in a host of important ways. For example, when people act as classic ...


Steve Dell Mcneill V. The State Of Nevada, 132 Nev. Adv. Op. 54 (July 28, 2016), Adrian Viesca Jul 2016

Steve Dell Mcneill V. The State Of Nevada, 132 Nev. Adv. Op. 54 (July 28, 2016), Adrian Viesca

Nevada Supreme Court Summaries

The Supreme Court determined that the plain language of NRS 213.1243 does not grant the State Board of Parole Commissioners authority to impose additional conditions not enumerated in the statute when supervising sex offenders on lifetime supervision.


A Proposal To Allow The Presentation Of Mitigation In Juvenile Court So That Juvenile Charges May Be Expunged In Appropriate Cases, Katherine I. Puzone Jan 2016

A Proposal To Allow The Presentation Of Mitigation In Juvenile Court So That Juvenile Charges May Be Expunged In Appropriate Cases, Katherine I. Puzone

Faculty Scholarship

No abstract provided.


Guns And Drugs, Benjamin Levin Jan 2016

Guns And Drugs, Benjamin Levin

Articles

This Article argues that the increasingly prevalent critiques of the War on Drugs apply to other areas of criminal law. To highlight the broader relevance of these critiques, this Article uses as its test case the criminal regulation of gun possession. This Article identifies and distills three lines of drug war criticism and argues that they apply to possessory gun crimes in much the same way that they apply to drug crimes. Specifically, this Article focuses on: (1) race- and class-based critiques; (2) concerns about police and prosecutorial power; and (3) worries about the social and economic costs of mass ...


What's Wrong With Sentencing Equality?, Richard A. Bierschbach, Stephanos Bibas Jan 2016

What's Wrong With Sentencing Equality?, Richard A. Bierschbach, Stephanos Bibas

Faculty Scholarship at Penn Law

Equality in criminal sentencing often translates into equalizing outcomes and stamping out variations, whether race-based, geographic, or random. This approach conflates the concept of equality with one contestable conception focused on outputs and numbers, not inputs and processes. Racial equality is crucial, but a concern with eliminating racism has hypertrophied well beyond race. Equalizing outcomes seems appealing as a neutral way to dodge contentious substantive policy debates about the purposes of punishment. But it actually privileges deterrence and incapacitation over rehabilitation, subjective elements of retribution, and procedural justice, and it provides little normative guidance for punishment. It also has unintended ...


Response, Values And Assumptions In Criminal Adjudication, Benjamin Levin Jan 2016

Response, Values And Assumptions In Criminal Adjudication, Benjamin Levin

Articles

This Response to Andrew Manuel Crespo's Systemic Facts: Toward Institutional Awareness in Criminal Courts proceeds in two Parts. In Part I, I argue that Crespo presents a compelling case for the importance of systemic factfinding to the task of criminal court judges. If, as a range of scholars has argued, criminal courts are increasingly serving a quasi-administrative function, then shouldn’t they at least be administrating accurately? Systemic Facts provides a novel account of how — with comparatively little institutional reform — courts might begin to serve as more effective administrators. However, in Part II, I also argue that Crespo’s ...


Police Reform And The Judicial Mandate, Julian A. Cook Jan 2016

Police Reform And The Judicial Mandate, Julian A. Cook

Scholarly Works

In response to a crisis that threatens his tenure as Mayor of Chicago, Rahm Emanuel announced in December 2015 reform measures designed to curb aggressive police tactics by the Chicago Police Department (CPD). The reform measures are limited, but aim to reduce deadly police-citizen encounters by arming the police with more tasers, and by requiring that officers undergo deescalation training. Though allegations of excessive force have plagued the department for years, the death of Laquan McDonald, an African-American teenager who was fatally shot by Jason Van Dyke, a white officer with the CPD, was the impetus for the Mayor’s ...